Maryam Obondo Otieno & another v Jael Osiro Opondo [2016] eKLR

Key Facts

Deceased Name

Issues

• Who pays the costs.
• Whether the said Johana Otieno Ojango was survived by three sons namely Francis Opondo Otieno, Maurice Opondo Otieno and Jacton Alando Alando.
• Whether the suit land was ancestral land of the family of Johana Otieno Ojango, deceased.
• Whether the Defendant obtained registration of the suit land before or after the death of Francis Opondo Otieno and Jacton Alando Alando. That if the registration was after their death whether her registration was in accordance with the provisions of the Law of Succession Act.
• Whether Francis Opondo Otieno and Jacton Alando Alando were registered with the suit land after adjudication as trustees for Maurice Obondo Otieno.
• Whether the orders/prayers sought should be granted.

Date of Death

Holdings

• The court ordered the plaintiffs to bear their own costs in the suit due to failure to establish service of a demand notice to the defendant prior to filing.
• The registration of Jael Osiro Opondo (defendant) as proprietor of the land was found illegal and unprocedural under the Law of Succession Act, leading to an order for cancellation of her registration and reversion to the deceased brothers' names.
• The court declared that the registration of Francis Opondo Otieno and Jacton Alando Alando as joint proprietors of land parcel Kisumu/Wathorego/774 created a trust for themselves and their deceased brother Maurice Obondo Otieno, as per Section 28 of the Land Registration Act.

Remedies

• The court held that the land was registered in trust for Maurice Obondo Otieno, even though the register did not explicitly state this. This declaration was based on Section 28 of the Land Registration Act and the case law cited in Jason Gitimu Wangara -V- Martin Munene Wangara.
• The court ruled that the Defendant's registration of the land parcel was illegal and unprocedural, as it violated the Law of Succession Act. The Land Registrar was directed to cancel her registration and reinstate the names of Francis Opondo Otieno and Jacton Alando Alando (both deceased) as proprietors to facilitate succession proceedings.
• While the Plaintiffs were successful in their claim against the Defendant, the court found they had not properly served her with a demand notice before initiating the suit. As a result, the Plaintiffs were directed to meet their own costs for the case.

Probate Status

Legal Principles

• The judgment emphasized the burden of proof on the Defendant (Jael Osiro Opondo) to demonstrate that her registration of the land parcel complied with the Law of Succession Act. The court found that she failed to meet this burden, leaving the Plaintiffs' claims unchallenged.
• The court applied the principle of constructive trusts under Section 28 of the Land Registration Act, holding that the registration of land in the names of Francis Opondo Otieno and Jacton Alando Alando was subject to a trust for their deceased brother Maurice Obondo Otieno. This aligns with the judgment in Jason Gitimu Wangara v Martin Munene Wangara (Kerugoya ELC No.278 of 2013), which emphasized that a registered proprietor must prove the legality of their title beyond mere possession of the instrument.
• The court applied the standard of proof at the balance of probabilities to determine the legality of the Defendant's land registration. This standard was used to assess whether the registration occurred in accordance with the Law of Succession Act after the deaths of the original proprietors.

Succession Regime

Precedent Name

• Jason Gitimu Wangara v Martin Munene Wangara & 13 others
• Munyu Maina v Hiram Gathina Maina

Cited Statute

• Law of Succession Act
• Land Registration Act

Judge Name

Passage Text

• c. That the three brothers have since died on the dates shown against their names hereinbelow from the details gathered from the copies of their certificates of deaths herein attached: • Francis Opondo Otieno - 28th.7.1996. • Maurice Obondo Otieno - 24.10.2004 • Jacton Alando Alando - 29.3.2002
• a. That the registration of Francis Edward Opondo Otieno alias Francis Obondo Otieno and Jeckton Alando Otieno alias Jacton Alando Alando, both now deceased, as joint proprietors of parcel Kisumu/Wathorego/774 was in trust for themselves and their middle brother Maurice Obondo Otieno, also deceased.
• b. That the registration of Jael Osiro Opondo, the Defendant, as proprietor of land parcel Kisumu/Wathorego/774 was illegally and unprocedurally done without following the provisions of the Law of Succession Act Chapter 160 Laws of Kenya, and therefore null and void. That the Land Registrar is hereby directed to rectify the register for land parcel Kisumu/Wathorego/774 by deleting the names of Jael Osiro Opondo as proprietor and revert its ownership to the names of Francis Edward Opondo Otieno and Jecton Alando Otieno (both deceased) to enable the interested heirs move to the succession court in accordance with the provisions of the Law of Succession Act.

Beneficiary Classes